State ex rel. Dunshie v. Fields 164 La. 954, 115 So. 45

OVERTON, J.

The Democratic state central committee convened pursuant to the provisions of Act 97 of 1922, on October 4, 1927, and on that date, by resolution, ordered a primary election for the Democratic party to be held in this state on January 17,1928, and, in the resolution calling the primary, fixed October 25,1927, as the last day for the filing of notices of intention to become candidates for nomination to the various state offices for which candidates are to be nominated.

On October 14, 1927, James J. Bailey, one of the defendants herein, filed his notice of intention to become a candidate for the nomination of the Democratic party for the office of secretary of state, and the relator herein, James E. Dunshie, filed a similar notice on October 25, 1927.

On October 26, 1927, Bailey filed with the chairman of the Democratic state central committee an objection to the recognition of the candidacy of relator on the ground that relator had not filed the notification of his candidacy within the delay prescribed by law, his contention being that, under section 13 of the Primary Election Law (Act 97 of 1922), relator should have filed his notification within 20 days after the issuance of the call for the primary election, notwithstanding any action the Democratic state central committee might have taken to the contrary.

On October 27, 1927, relator being absent from the state temporarily, and no one being present at his home, Bailey served a copy of his objection upon him by registered mail and special delivery, but relator did not receive the copy .until about October 29,1927.

On. October 31, 1927, the Democratic state central committee met ,for the purpose of con*957sidering Bailey’s objection to the recognition of relator’s candidacy. Relator appeared and excepted,' first, to the jurisdiction of the committee to pass upon the objection to his candidacy, and then, in the same pleading; to the legality of the service made, or attempted to be made, upon him, of the objection thereto, and when these exceptions were voted down, filed his answer.

The committee, after hearing Bailey’s objection .to relator’s candidacy, sustained it, and Bailey being then' the only candidate whose notification remained before the committee, and the time for filing notifications having elapsed, he was declared the nominee of the Democratic party for the office of secretary of state.

After the foregoing proceedings were had, relator brought the present suit against the chairman of the Democratic state central committee, the members of said committee, the executive committee of the Democratic state central committee, and the secretary of state, to require the chairman of the Democratic state’1 central 'committee to certify to the secretary of state the máme of relator as a candidate for the Democratic nomination for the office of secretary of state, to prohibit the state central committee from certifying Bailey as the nominee of the Democratic party for said office, to require the secretary of state to cause to be printed on the official ballots the name of relator as a candidate seeking the nomination, and restraining the secretary of state from causing the ballots to be printed otherwise.

In his petition, relator complains of the overruling of his exceptions to the jurisdiction of the committee and of his exception to the service made upon him; or attempted to be made upon him, as well as the refusal of the committee, to certify him as a candidate.

As relates to the exception- to the jurisdiction of the committee, it should.be observed that section 13 of the Primary Election Law (Act 97 of 1922) fixes a time within which notice of intention to become' a candidate shall be filed, and since the statute fixes such a time it would seem that some duly constituted body should have power to determine whether the notice was filed in time. The appropriate body to determine this is' the committee calling the election, its ruling being subject to review by the courts, when the ruling is to the effect that the notice was not timely filed, as provided in other instances, in section 11 of the act.

As relates to the exception with reference to the service, relator having appeared not only for the purpose of excepting to it, but also, in the same pleading, for the purpose of excepting to the jurisdiction of the committee, we think that he thereby waived any defect there might have been in the service. Moreover, since defendant was actually heard by the committee and has since had full opportunity to present the entire case to the courts de novo, he has suffered no injury because of defectiveness in the service, if any existed. See Zerlin v. Louisiana Real Estate Board, 158 La. 111, 103 So. 528.

The important question to be decided is whether .relator’s notice of intention was filed in time. If the period for filing the notice, fixed in the resolution, is to control, the notice was timely filed. On the other hand, if the time for filing it, as prescribed by statute, is to control, the notice was not timely filed, but was filed a day too late. The statute referred to is Act 97 of 1922, as amended by Act 215 of 1924. Section 13 of the act of 1922 reads as follows:

• “That any person desiring to become a candidate in any primary, election held under the provisions of this act shall, within twenty days for state and district officers, and within ten days for . parochial, • municipal and ward .officers, etc., from and after the issuance of the call of the said committee for the said primary election, -file with the respective officers hereinafter designated, his written notification;.of *959Ms intention to become a candidate at such primary, accompanied by a declaration that be is a duly qualified elector under the Constitution and laws of this state, and that he is a member of the party calling said primary election, and that he possesses such qualifications as are required by the state central committee of such party.”

Section 30, as amended by section 2 of Act 215 of 1924, reads, in part, as follows:

“That in the event that after the date has passed on which candidates are allowed to enter and file their notification in any primary under this act, it shall be found * * * that there be but one candidate for any particular office for which the primary has “been called, the respective committee ordering said primary, shall then be immediately convened, and the person so entering and being thus unopposed shall be declared to be the nominee of the party that has ordered said primary for the particular office, for which he has offered, without the necessity of holding a primary election for said office. * * *

“That in the event that after the date has passed on which candidates are allowed to enter and file their notification in any primary, under this act, one or more of the rival candidates for any particular office shall die, new candidates for that office shall be permitted to enter and file their notification for a period of five days after such death; provided, that this provision shall riot be effective when the death occurs within seven days of the day fixed for the primary election.”

Erom foregoing provisions it appears that the Legislature has fixed clearly and precisely the time within which notice of intention to become candidates shall be filed, and has said, as is the case here, that where the candidacy is for a state office the notice shall be filed within 20 days from and after the issuance of the call for the primary. The statute, in so far as it fixes the time in which notifications shall be filed, is mandatory. Its provisions, in this respect, are not to be departed from by those acting under it. The Legislature has clearly shown by these provisions that it did not intend that notices of intention to become candidates could be filed after the period fixed by it had elapsed. It has shown this by using the word “shall” in fixing the time for filing the notices, which indicates that the time fixed by it is to be adhered to by the person desiring to become a candidate. It has also shown this intention by requiring in section 30 of the act that the committee meet, should it be found that there is hut one candidate for.the nomination, “after the date has passed (meaning the date fixed in the act) on which candidates are allowed (italics ours) to enter and file their notification,” and declare such candidate the nominee. It has also shown this intention, in the same section, by providing under what circumstances an additional period will be allowed for the filing of notifications. These provisions indicate that the Legislature considered that the time fixed by it is sacramental, and that no notification should be filed’ and recognized after that time. In fact, it is usually held that a time limit for filing notifications under an election law is mandatory. Seawell v. Gifford, 22 Idaho, 295, 125 P. 182, Ann. Cas. 1914A, page 1132, and notes.

However, the committee by issuing the call for the primary on- October 4th, and stating that all notifications must be filed on or before October 25th, allowed, thougli doubtless inadvertently, 1 day additional for the filing of notifications, and since relator filed his notification on October 25th, the question is whether the time stated by the committee in its call should control that fixed by the statute. Our conclusion is that it should not. Nowhere in the statute, or elsewhere in the law, is the committee given discretion to fix the period for) filing notifications — to shorten or lengthen it — nor is the committee even required, in issuing its call, to give notice when the period for filing notifications begins or when it terminates. The statute itself has done that. The statute having done so, every one who intended to become a candidate was charged with knowledge of the statute and the period fixed by it, under the fam*961iliar principal that every one is presumed to know the law. And, such being our conclusions, not only was the committee without power to alter the period, but relator was not even excusable, from a legal standpoiht, in following the resolution, in so far as it undertook to state the termination of the period for filing notifications.

While, as held in Langridge v. Dauenhauer, 120 La. 450, 45 So. 387, laws providing for primary elections-should be so construed as to encourage the multiplication of worthy candidates, yet this principle.was never intended to be, and cannot be, carried to the extent of permitting the committee of a political party, by resolution, or otherwise, to abrogate a provision of a statute, and such would be the effect, if we permitted the resolution to control here. And for the same reason that we cannot permit the resolution to control here, we are unable to hold that the committee should have ruled- that relator should be recognized as a candidatei in the primary, because at the same meeting that relator’s notification was rejected, other notifications, filed on the same date as was relator’s, were recognized. To do so would be to require the committee to do an unlawful act.

Since relator did not file his notification within the 20-day period provided by statute, the trial court correctly rejected his demand. It may be here said that immediately after this case was decided in consultation, we handed down our decree. The decree is repeated here.

The judgment appealed from is affirmed.

O’NIELL, O. J.

(dissenting). The facts alleged in the relator’s petition are admitted to be true, in the answer of the Democratic state central committee. The law on the subject is Act 97 of 1922, as amended by Act 215 of 1924, providing for the calling, holding, conducting and regulating of primary elections by political parties. By the third section of the act, the committee was required to meet on the 1st Tuesday in October, this year — that being the “October next preceding the date of the general state election” — and to issue a call for a primary election to nominate candidates for the Democratic party. The committee was required, by the same section of the act, to fix as the date of the primary election the third Tuesday in next January. Accordingly, the committee met on Tuesday, the 4th of October, and adopted a resolution, issuing the call for the primary election to be held on Tuesday, the 17th of January, 1928. The committee declared in its resolution that the time within which candidates for the several state offices might qualify, by filing their written notification and a deposit of $100, would expire at midnight on Tuesday, the 25th of October. James J. Bailey, who now holds the office of secretary of state, filed his notification and deposit with the chairman of the committee on the 14th of October; and James E. Dunshie filed his on the 25th. No other person qualified as a candidate for the office of secretary of state. Others, however, filed their notifications and deposits, as candidates for other state offices, on the 25th of October, and, as to five of them, protests were filed, either by members of the committee or by opposing candidates, the protests or objections toeing based solely upon the same ground on which Bailey objected to Dunshie’s candidacy; that is to say, that the time within which the notification and deposit should have been filed expired at midnight on Monday, the 24th of October. The committee convened within 48 hours, as required by the eleventh section of the act, to consider each of the protests and determine, as the statute says, whether or not the person applying to be a candidate was qualified. The first protest or objection taken up and considered by the committee was not Bailey’s but. one of the fiye others, against *963one of the candidates for another state office, and the committee decided and ruled, by a vote of 61 to 8, that the objection — -that the notification filed on the 25th of October was filed too late — was not well founded. Thereupon, all of the other protests or objections based upon that ground, except Bailey’s protest against the candidacy of Dunshie, were withdrawn, in deference to the committee’s ruling, because, of course, it seemed futile for the contestants or protestants to persist in an objection which the committee had just then overruled. All of the contestees except D.unshie were therefore declared qualified candidates for the nominations for the several state offices, other than the office of secretary of state, and the names of the candidates were ordered printed on the official ballot. Then the committee immediately took up for consideration Bailey’s protest against Dunshie’s candidacy, which was based upon identically the same objection which the committee had just overruled by a vote of 61 to 8, as to the other candidates against whom the objection was made; and, notwithstanding the committee had just declared, by a vote of 61 to 8, that the objection was not well founded, the committee sustained Bailey’s protest, by a vote of 43 to 25, and denied Dunshie the privilege of being a candidate for the party nomination for the office of secretary of state, in the primary election to be held on the 17th of January, 1928. The only objection made, and the objection sustained to Dunshie’s candidacy, was that he had filed his notification and deposit on the 25th instead of filing it on the 24th of October; and that is the objection which the committee held, at the same time and in the same meeting when the committee ruled upon Bailey’s objection to Dunshie’s candidacy, was not well founded. All of that is admitted in the committee’s answer to this suit, without any pretense of justification or excuse whatsoever.

The statute does not allow an appeal • to the courts when the committee overrules an objection to the qualifications of a candidate and allows his name to be printed on the official ballot. It is only when the committee sustains an objection to the qualifications of a candidate that he may appeal to the courts. But it will not do to say that we have nothing to do with the committee’s ruling, on the objections to the five other candidates, that the notifications filed by them on the same date on which Dunshie filed his notification were filed in ample time. The ruling of the committee that the other candidates had filed their notifications in time shows that the committee had no just cause or reason whatever for depriving Dunshie of his privilege of being a candidate for the office to which he aspired.

It is said in the majority opinion in this ease that, inasmuch as section 13 of the Act 97 of 1922 (as amended by Act 215 of 1924) declares that any person desiring to become a'candidate should file his notification and make Ijis deposit within 20 days from and after the issuing of the call of the said committee, therefore, Mr. Dunshie was charged with knowledge that the 20 days within which he might file his notification and make his deposit would expire at midnight on the 24th of October, “under the familiar principle that every one is presumed to know the law,” notwithstanding the resolution of the committee, which was the only authority for holding the primary election, announced to Mr. Dunshie and to the whole wide world that he might file his notification and make his deposit at any time before midnight on Tuesday, the 25th of October. I do not subscribe to that proposition, because the question of time at which the 20 days allowed for the candidates to file their notifications would expire was as much a question of fact as a question of law. It . appears now that the resolution of the committee, calling the primary election and allowing .the candidates to file their no*965tifications and deposits at any time before midnight on the 25th of October, was adopted on the 4th of October. If it had been adopted on the 5th of October, or after midnight on the night of the 4th, the 20 days within which candidates might have filed their notifications would have expired at midnight on the night of the 25th. Dunshie was informed by the resolution of the committee that the 20 days would expire at midnight on the night of the 25th of October. He had the right to rely upon the resolution and was not required to investigate the date and hour at which the resolution was adopted, to determine whether the committee had made a mistake in its calculation that the-20 days would expire at midnight on the 25th of October. One of the candidates for state central committeeman, who is a very prominent attorney at law, who was once an Assistant Attorney General and afterwards city attorney for New Orleans, and is now commissioner of public finance, filed his notification on the 25th of October, and he was one of those whose candidacy was objected to because the notification was not filed before midnight on the 25th of October, and the committee ruled that he, as well as the four other eontestees, was right in relying upon the resolution of the committee.

I concede that, if the resolution of the committee was adopted on the 4th of October, or before midnight that night, as I understand it was, the 20 days from and after' that date expired at midnight on the night of the 24th of October, 'but that was not a good or valid reason for the committee to rule Dunshie off of the ticket, without declaring the whole resolution invalid. As to that primary election, the interpretation which the committee put upon the statute ought to prevail. The committee had the right, by continuing its session beyond midnight on the 4th of October, to allow all candidates until midnight on the 25th to file their notifications.

The principle of law, however, which ought to control this case, and which is well recognized in the jurisprudence of this court and of the Supreme Court of the United States is this: That when a department of the government, or a public board, or commission, or committee, is especially charged with the administration of any particular statute, the interpretation which that department or commission or committee gives to the statute is entitled to great weight, and the department or commission or committee cannot repudiate its interpretation of the statute when its repudiation would cause a great hardship or injustice to the public or to any individual.

The committee’s calculation that the 20> days to be computed from the 4th of October would expire on the 25th was not a far-' fetched interpretation of the law. There are two articles of the Code of Practice (articles 180 and 318) which declare that, whenever the law allows a certain number of days in which a party may do a particular thing, the last one of the number of days is not to be counted. There are several, decisions by this court in which those articles of the Code have been construed to mean that in all such cases the law allows 1 day of grace. See Mr. Justice Marr’s concurring opinion in Catherwood v. Shepard, 30 La. Ann. 677. The later decisions are that there is no day of .grace in such eases. See Tessier v. Jacobs, ante, p. 239, 113 So. 833. But, with regard to the primary election to be held next January, either 'the resolution of the committee ought to be declared valid or it ought to be annulled entirely. In my judgment it ought to be declared valid.

The district judge sustained an exception of nonjoinder of parties and compelled the plaintiff, Dunshie, to make James J. Bailey, individually, a party defendant. During the argument of the case I thought that the ruling was correct, but after reading the statute more carefully I have concluded that Bailey was not a necessary party to the suit. He *967had a selfish interest, of course, in having Dunshie ruled off of the ticket as an opponent, but he would have had no right to appeal to the courts if the committee hád refused to rule Dunshie, off of the ticket, and therefore it was not necessary that he should have been cited to defend the action of the committee in ruling Dunshie off of the ticket. That, however, is a matter of minor consideration in this case.

My opinion also is that the statute did not allow Bailey or any one else to contest Dunshie’s candidacy by demanding that the committee repudiate that part of its resolution which allowed all candidates until midnight on the 25th of October to file their notifications. Section 11 of the act merely allows protests or objections to the qualifications of a candidate, viz.:

“Said objection shall contain in detail the reasons why such other candidate is not a duly qualified candidate under the qualifications prescribed by the party calling the primary.”

The section further provides that the committee, in passing on a protest or objection, shall merely determine “whether or not the person applying to be a candidate is qualified.” That means that the committee shall determine whether the person has the resi-' dence qualifications, has paid his poll taxes, is registered, and whether he is a white person, and a Democrat; etc. It does not mean that the committee has the right to disqualify a candidate by arbitrarily repudiating the resolution of the committee calling the primary election. It is admitted that Dunshie has all of the prescribed qualifications.

There was something more important in this case than the contest between James J. Bailey and James E. Dunshie for the office of secretary of state. The important matter involved in the contest was the right of the people of Louisiana to elect their secretary of state, and the' rilling Of the committee, repudiating its resolution, deprived the electors of that privilege.

For these reasons I respectfully dissent from the majority opinion and decree in this case.